SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree that the application should be refused, for those reasons.

[2] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with those reasons and with the order proposed by his Honour.

[3] FRASER JA: On 13 March 2009 the applicant was convicted on her plea of guilty of an offence against s 307.2(1) of the Criminal Code Act 1995 (Cth) of importing a marketable quantity of a border controlled drug.  She was sentenced to eight years imprisonment with a non-parole period of four years and six months.  A period of 375 days from 3 March 2008 to 13 March 2009 was declared to be time served under the sentence by way of pre-sentence custody.

[4] The applicant applies for leave to appeal against sentence on the ground that it is manifestly excessive.  Her counsel argues that the sentence which should have been imposed was seven years imprisonment with a non-parole period of three and a half years. 

Circumstances of the offence

[5] The applicant arrived at Brisbane International Airport on 3 March 2008 on a flight from Chile.  She was travelling on a Malaysian passport issued on 11 February 2008 and endorsed with an Australian visa on the same day.  She had flown from Malaysia to Brazil on 17 February and stayed in Brazil until 1 March, when she commenced the flight to Australia via Chile and Auckland.  She was scheduled to return to Malaysia on 9 March.

[6] When the applicant was questioned by a customs officer upon arrival in Brisbane she said, in broken English, that she was visiting Australia for a few days holiday, and that she was travelling alone and did not know anyone in Australia.  Her suitcase was examined.  What proved to be cocaine was found in a sealed package concealed within the lining.  The applicant also had $1,300 USD in her possession.  A diary, later translated into English, contained some of the instructions which had been given to the applicant to transport the suitcase.  She was to collect the bag from the airport at Brisbane, contact someone and take it to an address in Sydney, where someone would collect the bag.

[7] The applicant answered the questions that were put to her by the customs officers and later by the Federal Police.  She told them that whilst in her home in Malaysia a woman who had lived with her some years earlier had telephoned her from Brazil, invited her to Brazil and sent her an air ticket.  The applicant was told that she would be going to Australia.  This woman had given the applicant $1,500 USD for a hotel, taxi and other expenses.  The applicant had spent some of the money, leaving the $1,300 USD found in her possession.

[8] The total weight of the impure cocaine secreted in the applicant’s suitcase was 1,982.2 grams, with a total weight of pure cocaine of 1,686.8 grams.  A statement of facts indicated that the street value was estimated at $759,083.49.  That was based on a street price of $450 per gram in New South Wales, the intended destination.  At the sentence hearing the prosecutor submitted that those figures unrealistically assumed sales of 100 per cent pure cocaine and that, at a more realistic re-sale purity of 30 per cent, the potential retail value of the drug exceeded $2,000,000.  Defence counsel acknowledged that it was "potentially possible" to value the drug at over $2,000,000 but observed that the value of the drug depended upon the level of the person involved in its distribution.  Wholesale values were significantly less than retail values.  The sentencing judge did not find it necessary to fix upon a particular retail value, relying instead upon the quantity of pure cocaine.

[9] The applicant quickly indicated her willingness to assist police in investigations with a view to identifying the person who was to take delivery of the cocaine.  Under police supervision the applicant communicated with a person she had been told to contact and checked into a room in a hotel nominated by that person.  After she had further communications with the same person it became impracticable to extend the investigation, despite the applicant's willingness to co-operate fully.  The applicant expressed remorse for what she had done.  She co-operated in a full hand-up committal with no cross examination and entered a plea of guilty at an early date.

The applicant's personal circumstances

[10] The applicant was born in Sabah in Malaysia.  She was educated to the age of 13 when she left school to work as a labourer in the rice paddies.  Her subsequent marriage at the age of 21 was annulled when she did not have children, after which she continued working in Kuala Lumpur.  Later she adopted a child of a close friend who had died during childbirth.  That child was 17 years old at the time of sentence.  Some four years before the applicant was sentenced she married her present husband, a man originally from Bangladesh.  The three of them lived in a mining company house.  It was whilst the applicant became involved in trying to sell Amway products to other people in mining company housing that she was introduced to the woman who proposed the trip to Australia. 

[11] The applicant intended to use the money offered to her for acting as a courier to relocate to Bangladesh where her husband's family owned a small plot of land.  They are poor people.  The applicant does not have the capacity to pay for telephone calls.  That limits her contact from prison with her husband and family in Malaysia. 

Sentencing Remarks

[12] The learned sentencing judge summarised the circumstances of the offence and the applicant's personal circumstances.  His Honour accepted that the applicant was genuinely remorseful, had entered a timely plea, had done as much as she could to assist the police in their investigations, and that it was unlikely that she would re-offend.  His Honour took into account also that the applicant would be more isolated than many others in prison and that she was a person with limited education in circumstances of some financial difficulty. 

[13] His Honour noted though that the overriding consideration to be taken into account was the need to attempt to combat the illegal drug trade, with a view to deterring others from engaging in similar conduct.

Discussion

[14] The maximum penalty for the offence is 25 years imprisonment.  The authorities cited to the sentencing judge and in this Court render it very difficult to accept the applicant’s contention that the sentence was manifestly excessive.  In particular, in the comparable decision of R v Mokoena [2009] QCA 36, this Court refused an application for leave to appeal against the sentence of nine years imprisonment with a non-parole period of four years and nine months imposed for one count of importing a marketable quantity of heroin.  That offender imported heroin by swallowing some 80 pellets containing the drug.  Upon analysis there was 497.5 grams of pure heroin. (A “marketable quantity” of heroin is between 2 and 1,500 grams.  The 1,686.8 grams of cocaine imported by the applicant fell within the “marketable quantity” for that drug of between 2 and 2,000 grams.) The street value was said to be just under $1,000,000.  He was to be paid $10,000 when he delivered the drug.  In summary, that offender knew more of what he was importing than did the applicant and his method of importation involved more deliberation but he imported much less of that different drug.

[15] Once Mokoena was detected at the airport he confessed to Federal Police officers.  He was 29 years old without prior convictions.  Like the applicant, that offender was in straitened circumstances and had accepted an offer of payment to act as a courier, in his case to obtain money to support his wife, children and an elderly grandmother.  He was of previous good character.  Also like the applicant, that offender was remorseful, made full admissions, and entered an early plea.  The Court noted that he had co-operated with the police "very substantially". (The prosecutor in this case informed the sentencing judge that, like the applicant, Mokoena had assisted the authorities in their attempts to identify and apprehend the person who was to receive the drug in Australia).  He also would suffer particular difficulties in prison, in that he was married with a nine year old son and an infant who had been born since he was imprisoned in Australia and he was HIV positive. 

[16] Holmes JA there referred to the detailed analysis of authorities in R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, referred to other decisions which are also relevant here, including R v Umenyi (unreported, Byrne J, SC No 237 of 2008, 18 March 2008), and observed (at [17]) that the head sentence of nine years imprisonment was “unremarkable”.  Her Honour found also that the setting of a non-parole period of 53 per cent of the sentence was consistent with the practice in other drug importation cases in this and other States of setting the non-parole period beyond the halfway mark of the head sentence, at a point to be determined by the circumstances of the case. 

[17] In light of that decision and the authorities analysed in it I cannot accept that the range of sentences open to the sentencing judge did not extend to the sentence imposed.  Indeed, I understood the applicant’s counsel to concede in the course of argument that the range extended further, but she argued that the sentencing judge erred in determining that the appropriate penalty was restricted to a sentence in the range of eight to nine years imprisonment.  She argued that the sentencing discretion miscarried because the sentencing judge confined the sentencing range without having sufficient regard to the comparable sentencing decisions of courts in other States.

[18] This argument must be rejected for a number of reasons.  During the course of submissions and after the sentencing judge had been referred to comparable decisions (including decisions of this Court and of courts in New South Wales and Victoria), his Honour indicated to both counsel that it seemed difficult to justify a sentence less severe than eight years.  Such a view was plainly open to his Honour, but more fundamentally it is clear that those remarks were made for the proper purpose of inviting argument.  They are incapable of supporting the argument made by the applicant’s counsel that the sentencing judge’s discretion miscarried.  There is no indication in the sentencing judge's remarks that his Honour unduly confined the limits of the discretion.  Rather, the judge referred to the relevant considerations and expressed the view that the appropriate sentence was a period of eight years with a non-parole period of four years and six months.

[19] Furthermore, with only one exception, in the comparable decisions cited to the sentencing judge (which included Mokoena and Tran) the head sentences for similar offending were between nine and ten years imprisonment.  The exception was the sentence of seven years and six months, with a non-parole period of five years, in Rv Thomas [1999] VSCA 204.  That sentence does not provide a reliable guide both because the judgment demonstrates that the sentence was moderated under the now repealed s 16G of the Crimes Act 1914 (Cth) (see Tran at [34] – [35]) and because the Victorian Court of Appeal decided only that the sentence was not manifestly excessive.  This Court’s recent decisions in R v Tran and R v Mokoena were made after an examination of relevant sentencing decisions both in this State and in the other States.  It was with reference to those analyses that Holmes JA made the observation in Mokoena that a head sentence of nine years imprisonment for that offender was “unremarkable”.  It is not necessary now to re-examine the interstate decisions.

[20] The applicant's counsel submits that a courier would receive a lesser sentence than someone at a higher level in the drug organisation or hierarchy.  Distinctions of that kind between the roles of different offenders are relevant to the extent that they reflect a difference in culpability (see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]), but the critical role played by couriers in facilitating the illegal drug trade is not to be overlooked.

[21] It is also submitted that the amount of drug is only one factor, and not necessarily the most important factor, to be taken into account in determining the sentence.  The weight of the drug imported is nonetheless material: see Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [66] – [73].  As Atkinson J pointed out in R v Tran at [37], the quantity of the drug imported is a factor which is relevant to determining how serious an example of the particular offence it may be.  Another factor is the extent of the offender’s knowledge about that.  It was not submitted that the sentencing judge erred in his Honour’s appreciation of the agreed facts, which did not assert that the applicant knew what or how much contraband she imported.  It remained open to the sentencing judge to attribute significance to the large amount of drug imported by the applicant as one of the important factors in arriving at a just sentence.

[22] The applicant's counsel referred to R v Klein (2001) 121 A Crim R 90 at 95, in which a sentence of three years and nine months imprisonment with a non-parole period of two years and six months was held not to be manifestly inadequate.  Counsel referred to the principles expressed in that decision, but there is no controversy about them in this application.  It was a less serious case, if only because the pure weight of cocaine imported there was about 514 grams, less than one third of the amount imported by the applicant.

[23] It was submitted for the applicant that the learned sentencing judge failed to give sufficient weight to the applicant's subjective circumstances and the assistance she offered to the authorities to attempt to apprehend those higher in the hierarchy of the importing organisation.  There were, however, varying degrees and forms of assistance in the comparable decisions to which the sentencing judge was referred.  In this respect the case is not readily distinguishable from Mokoena.  The sentencing judge made it plain that he had given credit to the applicant for the assistance she had provided and offered.  His Honour also made it plain that he had also taken into account the applicant's subjective circumstances. 

[24] In R v Ngui and Tiong (2000) 1 VR 579, upon which the applicant’s counsel relied, the value of the offenders’ assistance was far more significant than here.  Those couriers imported 1.25 kilograms of pure heroin.  They were re-sentenced on appeal to a term of five years imprisonment with a non-parole period of three years and four months.  The very high value of those offenders’ assistance, which was found to render them vulnerable to retribution, was highlighted by Winneke P’s statement that they gave "immediate and significant assistance to Federal Police as a result of which, following a "controlled delivery" of [a] portion of the drugs imported, a number of other persons in this country were arrested and charged".  Those offenders also undertook to give evidence, if necessary upon the trial of those persons, but it was the particular value of their past co-operation which that court regarded as justifying a substantial discount in the sentence that otherwise would have been imposed.  For that reason the moderate sentence imposed and the statement by Winneke P that his Honour would have imposed a term of six years imprisonment with a non-parole period of four years but for those offenders’ promises of future co-operation do not indicate that the sentence imposed here was comparatively too severe: see Tran at [44].

[25] The sentencing judge took into account all of the relevant matters referred to in s 16(2) of the Crimes Act 1914 (Cth) in fixing upon what his Honour regarded as a just sentence of a severity that was appropriate in all of the circumstances.  In my respectful opinion there was no error in the exercise of the sentencing discretion such as would justify this Court reopening the sentence.

Order

[26] I would refuse the application for leave to appeal.